People v. Byers CA2/3

Filed 6/8/16 P. v. Byers CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B260487

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA109527) v.

CLIFFORD BYERS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed in part and reversed and remanded in part. Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Defendant and appellant Clifford Byers appeals from an order denying his petition for resentencing under Proposition 36, the Three Strikes Reform Act of 2012, which reduces the punishment for some third-strike offenses that are neither serious nor violent. Because we conclude that Byers was eligible for resentencing on some counts under the act, we affirm in part and reverse and remand for resentencing in part. BACKGROUND In 1998, Byers was convicted of: count 1, conspiracy to manufacture phencyclidine (PCP) (Pen. Code, § 182, subd. (a)(1)),1 Health & Saf. Code, § 11379.6; count 8, manufacturing PCP (Health & Saf. Code, § 11379.6, subd. (a)); counts 9 and 12, possessing PCP for sale (Health & Saf. Code, § 11378.5); count 13, manufacturing PCP (Health & Saf. Code, § 11379.6, subd. (a)); count 18, manufacturing PCP (Health & Saf. Code, § 11379.6, subd. (a)); count 19, possessing to manufacture PCP (Health & Saf. Code, § 11383, subd. (b)(1)); and count 20, possessing a firearm with a prior (former § 12021.1). On counts 1 and 12, the jury found true a weight enhancement allegation, i.e., the amount of PCP exceeded 100 liters by volume (Health & Saf. Code, § 11370.4, subd. (b)(2)). Based on prior strikes, Byers was sentenced, on counts 8, 12 and 13 to 25 years to life, for a total of 75 years to life in prison. On counts 19 and 20, he was sentenced to concurrent 25-years-to-life terms.2 Sentences on counts 1, 9 and 18 were stayed. In December 2012, Byers petitioned for resentencing under Proposition 36. The People opposed the petition on the ground that Byers was ineligible for resentencing because of the firearm conviction (count 20) and the true findings on the weight enhancement allegations (counts 1 and 12). The trial court agreed that the true findings